from the this-is-openness? dept

Although ACTA has now been referred by the European Commission to the European Court of Justice, it continues its passage through the various committees of the European Parliament, each of which will provide input on the final decision of whether to ratify ACTA or not. The first of these took place last week, when the International Trade (INTA) committee had a preliminary ACTA workshop. This included hearing from external experts, one of whom was Michael Geist, well known to Techdirt readers.

It will come as no surprise to learn that his ten-minute speech succeeded in distilling the key flaws of ACTA in a highly-accessible way that left the treaty's supporters desperately trying to undo the damage to their arguments for the rest of the day -- and failing.

You can either watch the video (embedded above), or read the text -- they offer perhaps the best summary of ACTA's problems so far, and are highly recommended. Since some of the points he made have been discussed elsewhere, I'll focus here on the issues he covered that haven't received so much attention.

After summarizing his views as "ACTA’s harm greatly exceeds its potential benefits", Geist broke down his analysis into three parts: the process, substance and likely effectiveness of ACTA. On the process, he made this great point that hasn't been brought out much before:

All countries and stakeholders benefit from a well-functioning international intellectual property governance model led by WIPO and the WTO. Ratification of ACTA will undermine the authority of those institutions, causing immeasurable harm to the development of global IP norms. ACTA countries avoided WIPO due to gridlock concerns, but ratifying ACTA would perversely increase the likelihood of gridlock. For those countries participating in ACTA, the successful completion of the plurilateral model will only increase the incentives to by-pass WIPO as a forum for challenging, global issues. For those countries outside of ACTA, the relevance of WIPO will gradually diminish, as achieving consensus on their concerns may prove increasingly difficult.

That is, if ACTA is ratified it will harm a wide range of global bodies because of its go-it-alone approach. Of course, for the leading signatories -- the US and the EU -- that's a feature, not a bug, since they were finding it increasingly hard to impose their one-sided plans on global institutions where the rising BRICS economies were beginning to assert themselves.

As far as ACTA's substance is concerned:

The net effect of these provisions [that signatories "may" implement] is to open the door to statutory damages, detain in-transit goods, disclose information to rights holders, create criminal provisions for unauthorized camcording, and require Internet providers to disclose information about their subscribers.

While it is true that ACTA parties will not be required to implement these provisions in order to be compliant with the agreement, there will be considerable pressure to reinterpret these provisions as mandatory rather than permissive. Indeed, it is already happening as the IIPA, a rights holder lobby group, has recommended placing ACTA countries such as Greece, Spain, Romania, Latvia, Switzerland, Canada, and Mexico on the USTR piracy watch list for failing to include optional ACTA provisions in their domestic laws.

This is a crucial point. Defenders of ACTA emphasize that many of the worst provisions, detailed above, are optional -- signatories are not obliged to implement them. But as Geist points out, "may" has a habit of turning into "must", and he cites concrete evidence that the USTR is already working to make that happen.

In the same section, Geist also shows why claims that ACTA does not go beyond TRIPS are simply not true:

Unlike comparable international intellectual property agreements that have identified the need for balance and proportionality, ACTA is almost single-minded in its focus on increasing enforcement powers. ACTA Article 9 removes safeguards, ACTA Article 11 removes the proportionality provision found in the TRIPS equivalent, and ACTA Article 18 does not include rules for compensation in cases of wrongful detentions.

Finally, in the effectiveness section, he underlines the key failing of ACTA:

ACTA supporters may have believed that an agreement could best be achieved by bringing together a "coalition of the willing", but by limiting ACTA to predominantly developed world countries that are not typically associated with being major sources of counterfeit product, the agreement is seemingly designed to fail.

Geist's speech was greeted with rapturous applause by the vast majority of the 600 people who were present at the workshop -- an unusually large number for such meetings. One person who was visibly annoyed by this warm reception was the workshop's chairman, Vital Moreira, who declared:

you are not here to demonstrate; from now on, I will not allow any demonstration. Those who will infringe this rule will be kindly asked to leave the room.

That's rather rich, since he opened the session by claiming that the high attendance at the workshop "bears witness not only to the importance of this file, but also to the openness and transparency of this parliament, which in my view is second to none." Clearly, that openness only goes so far. The pointed contrast between his first and second thoughts on the subject can be enjoyed in the video below.

Re: Nominations

It sounded like polite applause to me, so calling it a demonstration was an overreaction to something that wasn't really a problem. But I guess that is appropriate because ACTA itself is an overreaction to something that isn't really a problem.

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For the record, I watched the entire session and no one was actually forced to leave. People were clapping despite the threats and someone actually commented on this dude's threat and said that since the speakers were invited as guests, they should be allowed to clap. So the weird dude let them clap.

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As usual My goverments answer regarding questions about secretly created treaties, human rights and ignoring public opinions was... Ignorance.
Ignoring the fact that ACTA is and will be modified by biased humans afterwards there in their mind absolutely no reason to question it's legality, sensibility and need. Nor Damages it will cause.

The answer was: There are no laws in Finland that need to change or modify in this treaty. Therefore My goverment has no need to not sign it =(
Unfortunately for them and rest of EU that is a lie.

Failed laws need to be able to revoke and modify by goverment which BTW ACTA will not allow.

If man is smart and wise enough not choose to be a politican, the dumber people will govern Him/Her.

i particularly liked the way that De Gucht jumped in and defended the ACTA heap of shit that he is doing his best to get implemented! looked to me as if he knew he was on a hiding to nothing after Geist uttered his first words. as for Moreira, he showed just what sort of person there is chairing this type of meeting when he issued the threat of having people removed for clapping, of all things. transparency there definitely is not!

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Damned skippy!

I agree, stop being such pussies and implement the treaty already!

All this forethought and consideration is for cheese-eating liberals from Conneticut, and it shows what yellow bellied sissies you all are. How do you know ACTA will horribly undercut personal freedoms in favour of gross over-expansion of enforcement rights and secondary liability unless you try it? What's wrong, you chicken?

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If the best argument for allowing something is that the thing you're allowing might not happen, then you probably shouldn't allow that thing to begin with. "Optional" parts of a treaty should be considered mandatory during debate, or there's really no point in including them at all.